April 19, 1993

Opinion 93-23
Canon 4C
Judge serving on Board of Directors of DUI Countermeasure School

Dear Judge

You have asked whether your present service as an unpaid member of the board of directors of your local DUI countermeasure school is contemplated by Canon 4C of the Code of Judicial Conduct.

You state that you regularly sentence DUI offenders to participate in a substance abuse course mandated by Florida Statutes §316.193(5). Your local DUI countermeasure school is the only alcohol safety education course in your county. You believe your present service seems to present numerous conflict potentialities as the board sets policy, recommends fees and otherwise directs the business affairs of the school.

On 21 May 1986 the Florida Supreme Court in conference concluded that service on DUI school boards was the type of organized activity contemplated by Canon 4C, to-wit: a judge

may serve as a member, officer or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. He may assist such an organization in raising funds and may participate in their management...

Also the commentary to Canon 4 states

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.

The court noted that the Florida supreme court and county court judges helped organize DUI schools to effectively deal with the problem of alcohol and driving. The Court rejected Committee Opinion 86-8 wherein the Committee majority suggested that service on a DUI school board by a county court judge might not be proper.

All nine participating Committee members agree that you are permitted by Canon 4C to serve.

However, five committee members state that judicial ethics require personal decisions by a judge. You may decide that your personal service on the board of directors may create an appearance of impropriety or create a conflict with your particular judicial position. If you perceive a potential for conflict that makes you feel uncomfortable, you should not do it.

One members cites the introductory language to Canon 4C that states a judge should only serve "...if in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him..." This member believes you personally must weigh your concerns and make a decision whether your capacity to decide impartially is affected or whether there is appearance of impropriety bases on your relationship with the school.

Another member can't find a good reason for you to serve as an unpaid director considering your situation.

One member suggests you avoid serving. He perceives a conflict when you order defendants to pay DUI school fees at the same time that you sit on the school board which sets the fees and the salaries and benefits of the school's administration and employees.

The committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So2d 5 (Fla.1976).

With regards, I remain,

Yours very truly,

Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges

JT/mc

cc: All Committee Members

Participating members: Judges Tolton, Green, Booth, Dell, Doughtie, Goldstein, Farina, Rushing and Clarke, Esq.

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